Martin v Individual Homes Pty Ltd (in liq) [1999] FCA 1869

Martin v Individual Homes Pty Ltd (in liq) [1999] FCA 1869

The stay was refused because, given the respondents' undertaking not to dispose of the Kambah property pending the appeal, the essential subject matter of the appeal would not be destroyed, and the appeal did not appear on the material before the Court to be particularly strong, although Finn J was not prepared to say it was totally unarguable.

Jurisdiction
Australia
Judgment Date
23 December 1999
Procedural Posture
Notice of Motion Seeking Stay of Execution of a Supreme Court of the Australian Capital Territory Judgment for Possession Pending Appeal / Ex Tempore Reasons for Judgment on Stay Application
Outcome
Notice of motion dismissed with costs.
Legal Topics
['stay of Execution Pending Appeal' 'judgment for Possession' 'tenancy at Sufferance' 'summary Judgment' "liquidator's Proceedings"]
['civil Procedure' 'property Law' 'tenancy Law' 'corporations and Insolvency'] ['stay of Execution Pending Appeal' 'judgment for Possession' 'tenancy at Sufferance' 'summary Judgment' "liquidator's Proceedings"]

Case Brief

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Procedural Posture

Notice of Motion Seeking Stay of Execution of a Supreme Court of the Australian Capital Territory Judgment for Possession Pending Appeal / Ex Tempore Reasons for Judgment on Stay Application

Legal Issues

  1. 1 ['Whether execution of the judgment for possession of 8 Grund Place in Kambah should be stayed until the conclusion of the appeal.' 'Whether the subject matter of the appeal would be lost if a stay were refused.' 'Whether the appellants had arguable grounds of appeal.' 'Whether the Landlord and Tenant Act 1949 (ACT) gave the appellants a right to a stay after its repeal by the Residential Tenancies (Consequential Provisions) Act 1998 (ACT).']

Ratio Decidendi

The stay was refused because, given the respondents' undertaking not to dispose of the Kambah property pending the appeal, the essential subject matter of the appeal would not be destroyed, and the appeal did not appear on the material before the Court to be particularly strong, although Finn J was not prepared to say it was totally unarguable.

Court Disposition

Notice of motion dismissed with costs.

Orders

  • ['The notice of motion be dismissed with costs.']